California death penalty unconstitutional, federal judge rules

In this photo taken Tuesday Sept. 21, 2010, the main entrance way to San Quentin State Prison is seen in San Quentin, Calif., Tuesday, Sept. 21, 2010. Death row inmate Albert Greenwood Brown is scheduled to die at the prison on Sept. 29 for the rape and murder of a 15-year-old Riverside County girl abducted on her way home from school in 1980. (AP Photo/Eric Risberg)

In a decision that could wipe California's death penalty off the books, a Los Angeles federal judge has declared the state's capital punishment law unconstitutional because of the decades death row inmates must inevitably wait before execution.

Calling the state's death penalty system "dysfunctional" and beyond repair, U.S. District Judge Cormac Carney concluded that death sentences in California have been transformed into "life in prison, with the remote possibility of death."

With no indication that the state will be able to fix its problems, the judge determined in the case of death row inmate Ernest DeWayne Jones that the entire system must be scrapped. Jones is on death row for the 1992 rape and murder of a 50-year-old Southern California accountant.

"When an individual is condemned to death in California, the sentence carries with it an implicit promise from the state that it will actually be carried out," the 2003 Republican appointee of former President George W. Bush wrote. "But for too long now, the promise has been an empty one ... it has resulted in a system that serves no penological purpose."

In the short term, the decision will not have much effect in California, where executions have been on hold since 2006 because of legal challenges to the state's lethal injection method. At least 17 death row inmates have exhausted all their legal appeals and face execution, but none are likely to be scheduled for the foreseeable future -- the state has yet to even put in place an updated lethal injection method that can be reviewed by the courts.

The judge cited that reality in his ruling, which noted that condemned killers spend more than 25 years on death row as their appeals drag through the system, with 20 percent of the inmates now 60 years old or older. There were 748 murderers on death row as of July 7, according to state figures.

Carney's ruling, however, could accomplish in the courts what death penalty foes have thus far been unable to carry out at the ballot box, if his decision survives on appeal. But legal experts say the U.S. Supreme Court may be reluctant to back the reasoning.

Attorney General Kamala Harris's office is reviewing the ruling and had no immediate comment. The state can appeal the decision to the 9th U.S. Circuit Court of Appeals.

Death row inmates in California and other states have raised the issue of death row delays in many cases, but it has not resulted in a death penalty law being invalidated. The U.S. Supreme Court has yet to rule on the issue.

Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, said the Supreme Court is unlikely to back the argument. "It can't fly," he said.

Scheidegger and others had hoped to put a measure on this November's ballot that might accelerate the state's death penalty process, but backed off earlier this year. Several former California governors had supported the proposed measure.

Death penalty opponents failed two years ago to persuade voters to abolish the death penalty when Proposition 34 was defeated.

Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow him at Twitter.com/hmintz